Unification Church A/k/a Holy Spirit Association for Theunification of World Christianity, Appellant, v. the Attorney General for the United States.keiko Asai et al., Petitioners, v. Immigration & Naturalization Service, Respondent, 581 F.2d 870 (D.C. Cir. 1978)

The Unification Church, also known as the Holy Spirit Association for the Unification of World Christianity, is an interfaith religious movement with membership in approximately 40 countries. The Church has established facilities at Tarrytown and Barrytown, New York, to train missionaries needed to staff its worldwide evangelical program. These two cases concern the efforts of the Church to bring aliens to the United States for missionary training at these facilities. In No. 76-1909 the Church appeals the Immigration and Naturalization Service's denial of the Church's petitions to have these aliens admitted as "trainees" under 8 U.S.C. § 1101(a) (15) (H) (iii).¹  See 8 U.S.C. § 1184(c). In No. 77-1400, the Church urges us to vacate deportation orders lodged against these aliens and to stay further deportation hearings until the validity of its H-3 petitions²  is conclusively determined.

* A district director of the Immigration and Naturalization Service (INS) initially denied the Church's H-3 petitions. Joint Appendix (J.A.) at 76, 125-30.³  His decision was affirmed by the Northeast regional commissioner. J.A. at 77. The commissioner stated that:

The record further reveals that many of the beneficiaries as well as other aliens not currently covered by an approved or pending H-3 petition were located in various towns and cities throughout the United States engaged in the sale of such merchandise as tea, flowers, candles, peanuts and candy in shopping centers, on the streets, and on a door-to-door basis, and soliciting donations on behalf of the Unification Church. In a number of instances, arrests by police authorities resulted because the solicitation of funds was in violation of local ordinances. Some of these aliens had been in this country less than a few weeks' time, one such individual having been admitted about one week earlier. Many of the aliens encountered by Service officers were found to be in the United States unlawfully by reason of having remained here beyond their authorized period of stay.

Despite the assertion that such solicitations were only a small part of the overall field experience, information received from various Service officers, throughout the United States substantiates that the beneficiaries have been widely and repeatedly engaged in such pursuit. We are led to the inescapable conclusion that the petitioner's current training program, which calls for three times as much field work as formal study, has been designed primarily for fund raising rather than for training purposes.

J.A. at 88.

The Church sought review in district court under the Administrative Procedure Act, arguing that these passages revealed that the commissioner had violated INS regulations prohibiting decisionmaking on the basis of adverse information not made available to the affected party.⁴  See 8 C.F.R. §§ 103.2(b) (2), 214.2(h) (6) (1977). The district court agreed and remanded the case "to the Regional Commissioner" ordering that it be "reopened to provide the plaintiff the opportunity to inspect and rebut the adverse information." J.A. at 32; Civil Action No. 74-1340 (D.D.C. 4 March 1975).

On remand the regional commissioner made available to the Church all adverse information in his files; the Church submitted a memorandum in response to this information. The commissioner reaffirmed his earlier decision, and his ruling was in turn affirmed by the district court. Civil Action No. 74-1340 (D.D.C. 27 July 1976). The Church appeals.⁵ 

The Church argues, first, that it was error for the district court not to have remanded the case to the district director. The Church contends that this mistake was harmful because the regional commissioner's determinations are not de novo and because he will set aside the decisions of a district director only if they are arbitrary and capricious.

We find it unnecessary to decide whether the case should have been remanded to the district director. We note that the Church had initially challenged an action of the regional commissioner. When the district court ordered the case remanded to the commissioner, he might have felt obligated by the order to himself proceed in the matter. We need not pursue the problem, however, because if suffices to conclude that we see no prejudice to the Church from the procedure that was followed.

The Administrative Procedure Act requires us to take "due account . . . of the rule of prejudicial error." 5 U.S.C. § 706. While the doctrine under which appellate courts ignore harmless error may not insulate officials or agencies to the same extent that it will trial judges, still it has material application. Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, 411-412, 379 F.2d 453, 465-66 (1967). We cannot hold on this record that appellant has been prejudiced by the remand to the regional commissioner. The commissioner invited appellant to introduce new evidence, J.A. at 154, and appellant neither proffered nor introduced any. Moreover, we do not find that the commissioner's decision was as constricted in scope as represented by appellant. The commissioner stated that:

The Petitioner has not met the burden imposed upon him by regulation Matter of Brantigan, 11 I. & N. Dec. 493 nor has he shown that the (challenged) decision is without a rational basis or that it is arbitrary, capricious, or an abuse of discretion. Accordingly, the denial of the petitions will be affirmed and the appeals will be dismissed.

J.A. at 182. Even assuming that "the (challenged) decision" referred to is that of the district director rather than the regional commissioner's own prior decision, the commissioner independently concluded that appellant had not met "the burden imposed upon him by regulation." This conclusion is not beyond the commissioner's authority under INS regulations. See 8 C.F.R. §§ 103.1(m) (11), 103.3 (1977).⁶ 

The Church also argues on appeal that the regional commissioner abused his discretion in denying its H-3 petitions. It contends that the INS has authority only to decide if a proposed training program is bona fide, and that it has "no authority to pass on the administration, development, need, effectiveness, and utility of a bona fide training program."⁷  Brief for appellant at 19. We need not reach the question of whether the INS can rely on any of these criteria.⁸  However, since in our view the commissioner justifiably determined that the Church's training program was not bona fide. Essentially, the commissioner found that the Church was not training the intended beneficiaries of its H-3 petitions at all, but instead was using them to solicit funds to support the Church. J.A. at 88, 180. We cannot say that this finding constitutes an abuse of discretion.

We also conclude that the denial of its H-3 petitions did not deprive the Church of any First Amendment rights. While we agree with appellant that the attorney general is not vested by statute with the responsibility of imposing standards for the conduct of a religious training program, brief for appellant at 14, we find that the actions of the INS in this case did not amount to such an intrusion. As required by statute, the commissioner merely made the legitimate threshold determination that the Church's training program was not bona fide. Kleindienst v. Mandel, 408 U.S. 753, 769-70, 92 S. Ct. 2576, 33 L. Ed. 2d 683 (1972).

II

The approximately 585 beneficiaries of the Church's H-3 petitions were variously admitted to the United States as visitors for business or as visitors for pleasure. See 8 U.S.C. § 1101(a) (15) (B). The parties have stipulated that this court treat Keiko Asai as representative of these beneficiaries.⁹ 

When the Northeast regional commissioner denied the Church's H-3 petitions, Asai applied for an extension of her stay in the United States. On September 5, 1974, the district director denied her application, stating as his reason that she "failed to establish that the purpose for which (she was) admitted has not been accomplished and that (her) requested extension is not merely an attempt to prolong (her) stay indefinitely." Appendix (App.) at 17. Asai was instructed "to depart from the United States not later than September 20, 1974." Id. No hearing was held before the district director.

When Asai failed to depart the United States by September 20, an Order was served upon her to show cause why she should not be deported. At her deportation hearing, the Immigration Judge ruled that her deportability had "been established by clear, convincing, and unequivocal evidence." Id. at 13. Relying on Matter of Sourbis, 11 I & N Dec. 335 (1965), he ruled that it was not necessary for him to determine whether the purpose for which she was admitted to the United States had been accomplished or whether she was merely attempting to prolong her stay indefinitely, because he did "not have jurisdiction to make any determination as to the propriety of the District Director's decision." App. at 9. The Judge also ruled that the INS was under no obligation to stay deportation proceedings pending a final judicial resolution of the Church's H-3 petitions. On appeal, the Judge's decision was sustained by the Board of Immigration Appeals.¹⁰  In No. 77-1400, Asai petitions this court for review.¹¹ 

Asai argues, first, that this court should invalidate the deportation order issued against her and stay all further deportation hearings pending a final judicial determination of the Church's H-3 petitions. Asai claims that the deportation proceedings render her ineligible under 8 U.S.C. § 1258 to change her nonimmigrant status to that of a trainee should a court ultimately decide that the Church's H-3 petitions be granted.¹²  She requests relief under the Administrative Procedure Act, 5 U.S.C. § 705, which she urges authorizes this court to "issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings."¹³ 

Putting aside the fact that we have today upheld the INS's denial of the Church's H-3 petitions, we find petitioner's argument to be without merit. Section 1258 of Title 8 of the United States Code states:

The Attorney General may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is Continuing to maintain that status, . . . .

(Emphasis added.)

It is not clear from the statute whether an applicant nonimmigrant must continue to maintain his "status" only until he petitions for a change in classification,¹⁴  or whether he must continue to maintain it until his petition is granted. In either case, however, the vacating of the deportation order would not assist Asai in the assertion of her rights under the statute. There is no question that Asai was maintaining her status within the meaning of INS regulations when she initially filed to change to an H-3 nonimmigrant classifications.¹⁵  Her later deportation cannot change that fact.¹⁶  On the other hand, if the statute is interpreted as requiring the applicant alien to continue to maintain his status until a change in classification is granted, the deportation proceedings are equally irrelevant. Asai ceased to maintain her status on September 20, 1974, when she failed to depart the United States as instructed by the district director. App. at 19. We conclude, therefore, that vacating the deportation orders issued against the beneficiaries of the Church's H-3 petitions will not serve to protect their rights under 8 U.S.C. § 1258 pending final judicial review of their case.

Asai's second argument in this petition is that her deportation hearing lacked due process of law because the Immigration Judge refused to consider de novo the district director's denial of her application for an extension of her stay. The director had determined that Asai had "failed to establish that the purpose for which (she was) admitted has not been accomplished and that (her) requested extension is not merely an attempt to prolong (her) stay." Asai's position is that the director's conclusion rests upon findings of fact, yet she was provided neither with notice of these proposed findings nor with a hearing in which to refute them.

The INS contends that we have no jurisdiction under 8 U.S.C. § 1105a(a) to review decisions of a district director that are collateral to a deportation proceeding.¹⁷  Such decisions, the INS urges, are reviewable in district court. See Cheng Fan Kwok v. INS, 392 U.S. 206, 210, 88 S. Ct. 1970, 20 L. Ed. 2d 1037 (1968); Butterfield v. INS, 133 U.S.App.D.C. 135, 409 F.2d 170 (1969).

Petitioner responds that she is not asking this court to review the decisions of the district director, but to pass on the validity of INS's interpretation of its own regulations making these decisions, reached without the opportunity for a hearing, binding on an Immigration Judge during a deportation proceeding. See Matter of Sourbis, 11 I & N Dec. 335 (1965); 8 C.F.R. §§ 103.1(f), 214.1(a), 242.16 (1977).

We agree that we have jurisdiction to consider this question, embracing as it does a final determination "made during a proceeding conducted under § 242(b) ( 8 U.S.C. § 1252(b))." Cheng Fan Kwok v. INS, 392 U.S. 206, 216, 88 S. Ct. 1970, 1976, 20 L. Ed. 2d 1037 (1968). Nevertheless, we find that petitioner's deportation hearing did not lack due process.

There is no specific statute that grants the attorney general the authority to extend the stay of a nonimmigrant in the United States. Section 1184(a) of Title 8 of the United States Code, however, authorizes the attorney general to admit nonimmigrants "for such time" as he "may by regulations prescribe." The attorney general has authorized district directors to decide whether extensions should be granted; these decisions are made without a hearing and without appeal. See 8 C.F.R. § 241.1(a) (1977). The granting of an extension is thus a political decision committed to executive discretion, and is conceptually analogous to the original granting of a visa. See 8 U.S.C. § 1201(a) (1970). Due process of law requires no hearing if an application for a visa is denied. See United States ex rel. Ulrich v. Kellogg, 58 U.S.App.D.C. 360, 362, 30 F.2d 984, 986, Cert. denied sub nom., United States ex rel. Ulrich v. Stimson, 279 U.S. 868, 49 S. Ct. 482, 73 L. Ed. 1005 (1929). While we are aware that petitioner was a lawfully admitted alien at the time of her application for an extension of the period of her temporary stay, we hold that the requirements of due process were met in these circumstances by the availability of judicial review under the Administrative Procedure Act to determine if the district director's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2) (A). Cf. Foti v. INS, 375 U.S. 217, 228 & n.15, 84 S. Ct. 306, 11 L. Ed. 2d 281 (1963).

Since the district director's denial of petitioner's application did not violate due process, neither did the Immigration Judge's reliance on it at her deportation proceeding. The attorney general is authorized by statute to delegate the duties and powers conferred upon him by the Immigration and Nationality Act, 8 U.S.C. § 1103, and we will not disturb the regulations he has established delegating these powers unless they violate the Act or the Constitution.¹⁸ 

We therefore affirm the decision of the Board of Immigration Appeals in No. 77-1400, and we affirm the decision of the district court in No. 76-1909.

So ordered.